State of Louisiana v. Dryefus Malbrough

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1241

STATE OF LOUISIANA

VERSUS

DRYEFUS MALBROUGH

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 122785.3
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney, Fifteenth Judicial District Court
J.N. Prather, Jr.
Assistant District Attorney, Fifteenth Judicial District Court
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Edward J. Marquet
Louisiana Appellate Project
P.O. Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Dryefus Malbrough

Mark O. Foster
Louisiana Appellate Project
P.O. Box 2057
Natchitoches, LA 71457-2057
(318) 572-5693
COUNSEL FOR DEFENDANT/APPELLANT:
Dryefus Malbrough

GREMILLION, Judge.

Defendant, Dryefus Malbrough, along with three co-defendants, Terrance

Sinegal, Lorenzo Angelle, and Courtney Romero, robbed the victim, Nicholas

Carter, of $289.00. Defendant was charged by bill of information with armed

robbery, a violation of La.R.S. 14:64. Following a jury trial, Defendant was found

guilty of the responsive verdict, simple robbery. He was sentenced to serve seven

years at hard labor, with credit for time served.

Defendant is now before this court on appeal, challenging his conviction in

four assignments of error. We affirm the defendant‟s conviction, but remand the

matter to the trial court with instructions to comply with the notification

requirements of La.Code Crim.P. art. 930.8.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. There is one error patent.

The record does not indicate that the trial court advised Defendant of the

prescriptive period for filing post-conviction relief as required by La.Code Crim.P.

art. 930.8. The trial court is directed to inform Defendant of the provisions of

Article 930.8 by sending appropriate written notice to him within ten days of the

rendition of this opinion and to file written proof in the record that he received the

notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied,

05-1762 (La. 2/10/06), 924 So.2d 163.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND FOUR

Defendant argues that “[t]hese three assignments of error are linked together

and when jointly considered establish insufficient proof to convict the defendant

beyond a reasonable doubt.”

When the entirety of the evidence, including inadmissible evidence
which was erroneously admitted, is insufficient to support the
conviction, the accused must be discharged as to that crime, and
any discussion by the court of the trial error issues as to that crime
would be pure dicta since those issues are moot.

State v. Hearold, 603 So.2d 731, 734 (La.1992). Accordingly, these assignments

of error are addressed first in the event Defendant is entitled to an acquittal.

The analysis for a claim of insufficient evidence is well-settled:

The standard of appellate review for a sufficiency of the
evidence claim is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988).
A determination of the weight of evidence is a question of fact, resting
solely with the trier of fact who may accept or reject, in whole or in
part, the testimony of any witnesses. State v. Silman, 95-0154
(La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on
the factfinding function of the jury only to the extent necessary to
assure the Jackson standard of review. State v. Bordenave, 95-2328
(La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate
court to assess credibility or re-weigh the evidence. Id.

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86.

Defendant was convicted of simple robbery, which is defined in La.R.S.

14:65(A) as “the taking of anything of value belonging to another from the person

of another or that is in the immediate control of another, by use of force or

intimidation, but not armed with a dangerous weapon.” Defendant does not

contest whether a robbery took place on the evening of December 15, 2008. He

challenges only his identity as established by co-defendants Lorenzo Angelle and

Courtney Romero.

Impermissible Hearsay

Defendant maintains that “the trial court allowed the introduction of

impermissible hearsay by allowing both [Officers Glenn Landry and Monika

Porter] to swear to the jury what Courtney Romero and Lorenzo Angelle saw and

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did despite untold objections by defense counsel” in order “to bolster the testimony

of two blemished witnesses who actually committed the crimes.” We note that

Defendant‟s argument does not identify any places or pages in the record where

hearsay objections were made during the officers‟ testimony and/or where the trial

court ruled on the objections. Uniform Rules―Courts of Appeal, Rule 2-12.4

provides in pertinent part:

The argument on a specification or assignment of error in a
brief shall include a suitable reference by volume and page to the
place in the record which contains the basis for the alleged error. The
court may disregard the argument on that error in the event suitable
reference to the record is not made.

Accordingly, we could disregard Defendant‟s argument as to assignment of error

number three.

Moreover, even if the record revealed that Defendant raised a hearsay

objection to the testimony of either officer, and the testimony was impermissibly

admitted, we find that the error was harmless. Both Romero and Angelle testified

at trial and were subject to cross-examination. Also, the evidence was cumulative

with the other evidence presented, which is discussed below in greater detail. See

State v. Perkins, 97-1119 (La.App. 3 Cir. 6/17/98), 716 So.2d 120. There is no

merit to assignment of error number three.

Statements of Lorenzo Angelle and Courtney Romero

Defendant maintains that the trial court improperly allowed the introduction

of Romero and Angelle‟s written statements which, in effect, “corroborated”

Officer Landry and Officer Porter‟s versions of the events.

During the testimony of Officer Porter, the State moved to introduce the

statements of Romero and Angelle, which were prepared as part of her report at the

time the offense was committed. Counsel for Sinegal objected on the basis that

introduction of the statements should be withheld until the respective individuals
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testified at trial. The objection was overruled, and Defendant‟s counsel concurred

in Sinegal‟s objection.

The statements were then disseminated to the jury, and Sinegal‟s counsel

reiterated his objection to the introduction of the statements. Defendant‟s counsel

stated:

MR. ALONZO: Judge, I‟d like to get something on the record
before that goes to the jury. I‟d like to put something on the record on
behalf – in regards to those documents before they go to the jury.

THE COURT: Gentlemen, I‟ll let you do that and those are
statement from co-defendants.

....

MR. ALONZO: Yes, Judge, I just wanted to note for the record
our prior objections and I‟d like to just state for the record, Judge, we
have consistently objected today to the statements that have come in
on the co-defendants because they‟ve already pled and that – I
understand the Court‟s position on that. But now, Judge, on what just
occurred for the record was that the co-defendants written statements
prior to their testimony was handed to the jury, the jury read it for
approximately twenty-five minutes. Judge, that information is gone to
the jury without our chance to cross-examine the witness. It‟s done.
There‟s no way we can get that information back. The jury now has
it. We object to that. Based upon that I think that‟s going to
inherently prejudice the jury and I think it‟s something I just wanted
to put on the record.

....

MR. ALONZO: Judge, let me note also one of the basis for my
objection for the record, Your Honor, is that the introduction of those
statements clearly violates the best evidence rules. Those witnesses
were here to testify. We could have had them testify live. As it was
their statements went in to the jury and that was their testimony.

THE COURT: I‟m sure they‟re going to testify.

On appeal, Defendant does not challenge the introduction of the statements

based on the best evidence rule but instead, maintains that the statements were

hearsay evidence.

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The State argues that the statements were offered under the hearsay

exception of “explanation of conduct” concerning information received by the

officer which led to the ultimate arrest of the accused. The State adds that an out-

of-court statement is not hearsay if it was introduced to explain why a person took

a particular course of action but not to prove the truth of the matter asserted. In

support of its argument, the State refers to State v. Turner, 392 So.2d 436

(La.1980), wherein the defendant objected to the testimony of a criminal

investigator regarding his reference to a report of possible criminal activity

involving the defendant. The court found that the testimony was not offered to

prove the truth of information received but to show why the investigator ordered a

search.

The issue at hand, however, is the admissibility of Romero and Angelle‟s

statements, not the testimony of the officers referring to a report or tip leading to

their subsequent conduct. The record reflects that both Romero and Angelle

testified at trial subsequent to the introduction of their statements. Defendant was

afforded the opportunity to cross-examine these witnesses regarding the content of

their respective statements. Accordingly, Defendant has not shown that the

statements are hearsay evidence. La.Code Evid. art. 801(D)(1). Also, Defendant

has not alleged or shown that he suffered any prejudice by the introduction of the

statements at the time of Officer Porter‟s testimony rather than introducing them at

the time Romero and Angelle testified.

Sufficiency of Evidence

Defendant concludes that the jury relied on improper hearsay evidence in

determining his guilt and that absent the inadmissible evidence, the evidence was

insufficient to convict him. Defendant, however, has not shown that the trial court

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allowed improper hearsay evidence or that the introduction of hearsay evidence

played a significant role in identifying him as a perpetrator in the offense.

Even if the testimony of the officers and Romero and Angelle‟s statements

had been excluded at trial, the testimony of Romero and Angelle identified

Defendant as one of the masked perpetrators, a man with whom they were both

acquainted prior to the offense and who was involved in the plan and eventual

robbery of the victim. Romero stated that she was at Angelle‟s house when

Angelle received a phone call from Defendant. Romero was fifteen years old at

that time and was living with Angelle. Defendant indicated that he wanted to “hit

a lick” or rob someone. Soon thereafter, Romero and Angelle met up with

Defendant and co-defendant Terrance Sinegal, a/k/a “Trill.” Romero then called

the victim and arranged to meet him at her cousin‟s house to purchase Ecstasy pills

for her cousin. Romero led the victim to believe that after taking the pills inside to

her cousin, she would leave with the victim.

To get the pills and money from the victim, Romero believed that the three

men planned to strong-arm the victim. Romero called the victim to ascertain his

whereabouts, and he indicated he was about to arrive. The three men went to the

back of the house. When the victim pulled up, Romero walked to his vehicle,

opened the door, put her cigarettes and belongings on the seat, and asked him if he

had the pills. The victim then got out of the vehicle and reached under his seat.

Romero removed the keys from the ignition and ran under the carport. She told the

three men that she had the keys, and they ran up to the vehicle. Defendant and

Sinegal approached the driver‟s door wearing black hoodies and bandanas around

their faces. When the victim saw them, he jumped back into the vehicle.

Defendant and Sinegal put their guns in the victim‟s face and ordered him to give

them the money and pills. Meanwhile, Angelle entered the vehicle on the
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passenger side and went through the victim‟s console to see what he could find.

According to Romero, the victim started throwing money. Romero returned the

keys, and the victim drove away after the men instructed him to leave.

Afterwards, Romero and Angelle went to the home of Mennifer Sinegal,

Defendant‟s girlfriend, where they met with Defendant and Sinegal to split the

money. Of the $289.00 stolen, Angelle received $89.00, and Defendant and

Sinegal each got $100.00. Romero and Angelle then returned to Angelle‟s house

and went to bed without changing clothes.

About thirty to forty-five minutes later, the police arrived at Angelle‟s

house. At first, Romero denied having any knowledge of the offense. After the

police brought Romero to the station and contacted her mother, Romero gave a

written statement. Romero was prosecuted through the juvenile system for her

involvement in the offense. She admitted to the charge, principal to armed

robbery, served three months in juvenile detention, and was placed in drug court

where she was in treatment for nine months. Romero stated that she successfully

completed the program and was clean at trial.

On cross-examination, Romero testified that she was eleven years old when

she started using drugs. The victim began supplying her with drugs, including

Ecstasy, cocaine, and marijuana, when she was twelve-to-thirteen years old. Prior

to her relationship with Angelle, she had a sexual relationship with the victim. She

used her prior relationship with the victim to lure him to the location of the

robbery, with the understanding that she would leave with him to have sex.

Romero decided to come clean about the robbery when she learned that the victim

had given her cellphone number to the police. Lastly, Romero testified that

Angelle was the father of her child.

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Angelle also testified that he and Romero were living together at the time of

the offense. They received a phone call from Defendant who wanted to “hit a

lick,” meaning he was broke and wanted money. Angelle and Romero then met up

with Defendant and Sinegal at a Shell station where they came up with a plan to

rob the victim. Romero would remove the keys from the victim‟s car, and the

three men would confront him and take everything he had. Angelle stated that the

use of weapons was not part of the plan.

When they arrived at the location, Angelle, Defendant, and Sinegal hid

while Romero waited for the victim in the street. When the victim drove up,

Romero walked to his vehicle and removed the keys. Next, Defendant and Sinegal

ran from behind a tree wearing black hoodies and bandanas covering their noses

and mouths. They were armed with guns. Defendant and Sinegal pointed their

guns in the victim‟s face and yelled “give it up.” Meanwhile, Angelle searched the

vehicle. The victim gave the men $289 and a few Ecstasy pills. They left the

scene and went to Mennifer‟s house, where they split the money and pills.

Afterwards, Angelle and Romero went back to his house and went to sleep.

About an hour later, the police arrived. Angelle told the police that he had been

sleeping since 8:30 p.m. and knew nothing about the offense. The police brought

him and Romero to the police station. Once he arrived at the station, Angelle

decided to cooperate and gave a written statement admitting to participation in the

robbery. Angelle identified Defendant and Sinegal in open court as the two

masked men who participated in the robbery. Angelle was charged with principal

to armed robbery and pled guilty to the lesser charge of simple robbery. At the

time of trial, Angelle had not yet been sentenced.

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The State stresses that the testimony and statements of the victim also

implicated Defendant in the offense. Further, the State maintains that Defendant

tried to get the victim to change his original statement.

The victim testified at trial that he did not know the two armed men. Also,

he did not identify Defendant in his first statement taken shortly after the offense.

About a year after the offense, the victim implicated Defendant in a second

statement taken by investigator, Roy Given, hired by counsel for Sinegal. The

following colloquy took place:

RG: In your own words, could you explain to me what happened

NC: Courtney Romero called me for a ride. I went to pick her up she
pulled my keys out my ignition and two men came up with guns and
demanded money on the corner of Arthur and St. Antoine

RG: How much money did they take

....

NC: Okay. Was any of the ….. name the men that were involved

NC: Dryefus, Lorenzo but Lorenzo didn‟t have a gun and I couldn‟t
see the other man but he was bigger

RG: Was any of these men Terrance Sinegal

NC: No

RG: Can you explain ….. give me a physical description of each one
of these men that held you up

NC: All I know is …. one had on no mask and I coulda [sic] see that
was Lorenzo and the other one had on a mask and he had dreads and
the other one had on a mask but he was bigger, he was big

RG: You are positive that none of them was Terrance

NC: Yeah, positive

RG: Is there anything else you would like to add

NC: No sir

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One week before trial, the victim, incarcerated for an unrelated offense,

received a verbal message from Defendant, also serving time in the same facility,

that he wanted to talk to the victim. The victim was presented with a handwritten

statement that he presumed was written by Defendant. The statement indicated

that the victim wanted to dismiss the charges against Defendant. The statement

was dated March 6, 2011, and reads:

I Nick Carter on the above date and time chose not to pursue
the charges of armed robbery on Mr. Dryefus Malborough [sic]. I
Nick Carter was neither forced nor threatened to write this affidavit.
The altercation between Mr. Malborough [sic] and I Nick Carter was
just a misunderstanding and I Nick Carter again do not wish to pursue
the charges on Mr. Malborough [sic]. Thank you for all of your help
and concerns.
The victim signed the statement, his third and final statement regarding the

offense. The victim denied being threatened by Defendant to sign the statement.

He reasserted that he did not know Defendant prior to the offense. Lastly, the

victim testified that he was on probation at the time of trial as the result of pleading

guilty to attempted possession with intent to distribute cocaine.

On cross-examination, the victim maintained that drugs were not taken from

him during the robbery, and he was not in possession of drugs at the time of the

offense. When asked if he had ever provided drugs to Romero, the victim admitted

he had “smoked” with her. He denied ever giving Romero Ecstasy pills.

The reason the victim gave his second statement was to prove that the

physical description of the perpetrator believed to be Terrance Sinegal did not fit

Sinegal‟s physical description. According to the victim, the perpetrator was big.

Additionally, the victim recalled telling the prosecutor on October 26, 2010, that

Sinegal had nothing to do with the offense. Again, the victim asserted that no one

had threatened him.

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On redirect examination, the victim admitted that about a year after the

offense, he spoke with Sinegal‟s mother, who asked him to help her out. The

victim then went to his attorney, who subsequently sent a private investigator to

take his statement. The victim denied implicating Defendant in his statement,

because he did not know Defendant at the time. The victim was then shown a copy

of the statement wherein he had identified Defendant by name as a participant in

the offense. The victim maintained that he could not see the faces of the men but

learned that Defendant was there and had put a gun in his face.

Regarding his third statement, the victim stated he was taken from “the

yard” to Defendant‟s pod where Defendant gave him a document to sign. The

victim testified that the document had already been written when it was given to

him to sign, and he did not compose the language in the statement.

Although there are discrepancies in the victim‟s testimony and statements,

the victim implicated Defendant in the offense and never retracted his

identification of Defendant as one of the perpetrators. Considering the testimony

of co-defendants Angelle and Romero and that of the victim, we find the evidence

was sufficient to prove that Defendant was a participant in the crime. Defendant

does not challenge any elements of the offense other than his identity.

Accordingly, there is no merit in assignment of error number two.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant maintains that a review of the record reveals no reference or

testimony as to the venue of where the offense of armed robbery occurred. As

such, Defendant contends that the prosecution failed to prove the venue of the

instant offense.

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In support of his argument, Defendant refers to State v. Beard, 249 La. 811,

191 So.2d 631, 632 (1966) (citations and footnote omitted), wherein the court

stated:

It is fundamental under our law that the State in all criminal
trials allege and prove the venue of the offense. Section 9 of Article 1
of the Constitution, as amended by Act 528 of 1962, declares in part:
„* * * all trials shall take place in the parish in which the offense is
committed, unless the venue be changed * * *‟ Also the jurisprudence
of this Court is now firmly settled that, since the question of venue in
a criminal case is one of fact, which does not pertain to the guilt or
innocence of the accused, it may be raised In limine and, when it is,
there is no constitutional prohibition precluding either the trial judge
or this Court from deciding the issue. Indeed, these cases hold that
the defendant in a criminal prosecution has the right to have the
question of venue decided before he is compelled to go to trial.

We note that the bill of information filed against Defendant indicates that the

offense occurred in Lafayette Parish. Defendant did not object to the bill of

information or challenge the venue as stated in the bill of information in a pre-trial

motion to quash.

In State v. Moss, 08-1079, pp. 13-14 (La.App. 4 Cir. 7/22/09), 17 So.3d 441,

449-50, writ denied, 09-1895 (La. 4/9/10), 31 So.3d 382 (footnote omitted), the

court explained:

La. Const. Art. 1 § 16 guarantees the right to be tried in the
parish where the offense occurred, unless venue is changed in
accordance with law. The Louisiana legislature has codified this state
constitutional guarantee in the Title XIX of the Louisiana Code of
Criminal Procedure. La.C.Cr.P. art. 611(A) provides in pertinent part:
“[a]ll trials shall take place in the parish where the offense has been
committed.” La.C.Cr.P. art. 615 specifies the procedural device for
invoking that right:

Improper venue shall be raised in advance of trial by
motion to quash, and shall be tried by the judge alone.
Venue shall not be considered an essential element to be
proven by the state at trial, rather it shall be a
jurisdictional matter to be proven by the state by a
preponderance of the evidence and decided by the court
in advance of trial.

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Emphasis added. See also State v. Pierre, 2004-0010, p. 3 (La.App. 4
Cir. 2/25/04) 869 So.2d 246, 248 (failure to file a pre trial motion to
quash prohibits appellate review venue issue).

Moss cites State v. Jackson, 308 So.2d 265 (La.1975) for the
proposition that a challenge to the sufficiency of proof of venue may
be raised by a Motion for Directed verdict. Jackson addressed a pre-
1988 version of La.C.Cr.P. art. 615. The law was changed by the
1988 amendment. Moss failed to challenge venue in a pre-trial
motion to quash. Accordingly, this issue has not been preserved for
appellate review.

Likewise, we find that Defendant herein did not preserve his challenge of

venue for appellate review.

DISPOSITION

Defendant‟s conviction is affirmed; this matter is remanded to the trial court

with instructions to comply with the notification requirements of La.Code Crim.P.

art. 930.8.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

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